Walsh v St. Clare's GP3 Ltd

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 10 March 2023
• Neutral Citation: [2023] IEHC 105
• Court: High Court
• Docket Number: [2022 No. 4826 P]

Paul Walsh and Christine Kirwan

Plaintiffs

and

St. Clare's GP3 Limited and Balark Trading GP Limited

Defendants

[2023] IEHC 105

[2022 No. 4826 P]

THE HIGH COURT

Settlement agreement – Specific performance – Admission – Plaintiffs seeking specific performance of settlement agreement – Whether the proceedings had commercial aspects that made them appropriate for admission

Facts: The parties entered into a settlement agreement on 19th April, 2019. The settlement agreement envisaged in para. 5 that “the Applicants’ property shall have adequate privacy screening”, and for that purpose “the Notice Party shall implement the landscaping arrangements along the boundary of the Applicants’ property…and shall do so as soon as these are in planting season and can be planted safely and viably and with a chance of survival”. An impasse regarding the differing views on the need to plant trees led to the institution of an action seeking specific performance of the settlement agreement. The proceedings were issued on 20th September, 2022 and a statement of claim was delivered on 21st December, 2022. On 22nd December, 2022, a motion to admit the proceedings to the list was issued by the plaintiffs, Mr Walsh and Ms Kirwan. This was opposed by the developer. The defendants, St. Clare's GP3 Ltd and Balark Trading GP Ltd, said that a planning and environmental case for the purposes of High Court Practice Direction HC107 (as amended by Practice Direction HC114) means a case raising planning and environmental issues, not merely a case in the planning and environmental area, and that the proceedings were about breach of contract and not planning or the environment. The developer complained that the trees were planted in January 2022, that the plaintiffs complained about them in February 2022, that they did not issue proceedings until September 2022 and then did not bring this motion until December 2022. They said that the plaintiffs should be shut out from succeeding in the application by reason of that delay.

Held by Humphreys J that the purpose of the settlement agreement was to provide for planting of trees and to make provision for screening, which related directly to the natural and built environment; this was therefore a planning or environmental case for the purposes of admission to the list. Humphreys J noted that the developer itself originally (in the person of a previous corporate vehicle) applied to have the underlying proceedings entered in the Commercial List, the application was closely interconnected with those commercial proceedings, the application could not be taken in isolation and was part of a sequence of events involving eight planning applications and four sets of proceedings, and there was a particular desirability of expedition having regard to the history of the matter, which was more likely to be facilitated in the Commercial Planning and Strategic Infrastructure Development List than in a general list. Humphreys J held that, even assuming that the value of potential further tree-planting works would not exceed €12,500, this did not detract from the commercial aspects of the proceedings rendering the case appropriate for admission. In all the circumstances, it seemed to Humphreys J that entry into the list was appropriate. Insofar as delay was presented as an obstacle rather than merely as one circumstance to be considered among others, Humphreys J found that this misunderstood the nature of the admission process. Even accepting the need to consider all circumstances of relevance, including delay, it seemed to Humphreys J a reasonable exercise of discretion to admit the set of proceedings to the list in the particular circumstances. Humphreys J held that the delay was far from extreme on the facts, but even if it was more significant it would be outweighed by the other factors.

Humphreys J held that there would be an order admitting the case to the Commercial Planning and Strategic Infrastructure Development List. Humphreys J held that the matter would be listed for directions on a date to be notified by the List Registrar, unless directions were agreed by the parties in the meantime.

Motion granted.

JUDGMENT of Humphreys J. delivered on the 10th day of March, 2023

1 . The relatively complicated planning history of this site has involved eight applications for planning permission. The outcomes of two of those have been challenged by the plaintiffs, a process which has given rise to multiple sets of proceedings, of which this is the fourth.

2 . The plaintiffs live beside the development site. When the original permission was granted in 2015, the plaintiffs did not object because the privacy of their property was protected by mature trees at the back of the site. In 2017 the trees were removed, a matter which they say has been the cause of significant difficulty since then. The plaintiffs maintain that the removal was unlawful, and say that this has been conceded by the city council.

3 . The plaintiffs brought a first set of proceedings challenging a further permission [2018 No. 1083 JR]. On the application of the developer, those proceedings were admitted to the Commercial Court. However, the parties entered into a settlement agreement on 19 ^th April, 2019 (as between the plaintiffs and the particular corporate vehicle that was carrying out that part of the development). The settlement agreement envisaged in para. 5 that “the Applicants' property shall have adequate privacy screening”, and for that purpose “the Notice Party shall implement the landscaping arrangements along the boundary of the Applicants' property (as referred to in landscaping plan drawing number 1385/6012 and attached hereto) and shall do so as soon as these are in planting season and can be planted safely and viably and with a chance of survival”.

4 . Unfortunately, the plaintiffs say that this did not happen.

5 . A second set of proceedings were instituted regarding another application on the same site [2020 No. 266 JR]. The board conceded certiorari. After that, there was some argument about remittal. In an ex tempore ruling of 17 ^th September, 2020, McDonald J. directed remittal to the board.

6 . At some point during 2021, the developer allegedly replaced the planting diagram on file with the city council...